SUPREME COURT HALTS RELEASE OF GMO
FAILURE TO DETERMINE EIA REQUIREMENT DEALS FATAL BLOW TO GMO PERMIT APPROVAL
African Centre for Biodiversity NPC v Minister of Agriculture, Forestry and Fisheries and Others (934/2023) [2024] ZASCA 143 (22 October 2024)
On 14 July 2014, Monsanto South Africa (Pty) Ltd applied for a permit for the general release of a genetically modified variety of maize.
On 12 June 2015, Monsanto was granted a permit for the general release of the Genetically Modified Organism (GMO).
On 7 August 2015, the appellant, the African Centre for Biodiversity NPC (ACB), a non-governmental advocacy organisation, with a focus on biosafety and agricultural biodiversity, appealed in terms of s 19 of the Genetically Modified Organisms Act 15 of 1997, (GMO Act) against the approval.
The Appeal Board, by a majority, dismissed the appeal on 1 September 2016, and the Minister of Agriculture, Forestry and Fisheries (the Minister) confirmed the Appeal Board’s decision on 2 December 2016.
In April 2017, ACB applied to the Gauteng Division of the High Court, Pretoria to have the approval and subsequent decisions, reviewed and set aside.
The high court dismissed the application on 27 June 2023, but granted leave to the ACB to appeal to the Supreme Court of Appeal. (SCA)
THE PRECAUTIONARY PRINCIPLE
The precautionary principle, requires that where there exists evidence of possible environmental harm, decision-makers ought to adopt a cautious approach and are compelled to take protective and preventive measures before the anticipated harm materialises.
The experts who provided opinions in support of the Appellant (ACB) highlighted several fundamental concerns, inter alia, including:
That Monsanto’s risk assessment was inadequate in identifying plausible hazards;
There is no history of the safe use of the GMO, inasmuch as the data submitted by Monsanto in support of its safety claims were based on fermented and digested forms of the product;
There was no evidence in the record before the Executive Council, the Appeal Board and the Minister on the effects of food processing and the safety of human exposure.
The SCA held that:
Instead of adopting the prescribed cautious approach and requiring Monsanto to address the safety concerns that had been identified, each of the State respondents proceeded to accept the say-so of Monsanto without any further consideration of safety risks.
NON-COMPLIANCE WITH THE GMO ACT
The SCA further found that the State respondents had failed to comply with s5(1)(a) of the GMO Act.
Section 5(1)(a) of the Act provides that the Executive Council shall:
‘Where an applicant applies in the prescribed manner for a permit to conduct activities in respect of genetically modified organisms, determine whether that applicant must, in addition to his or her application, submit an assessment in accordance with the relevant provisions of [NEMA], of the impact on the environment and an assessment of the socio-economic considerations of such activities’.
This provision, which is framed in peremptory terms, places an obligation on the Executive Council to make a determination as to whether or not an applicant must submit an assessment in accordance with NEMA.
The SCA concluded that:
the precautionary principle was triggered and ought to have been applied;
the Executive Council failed to comply with a mandatory requirement under section 5(1)(a) of the Act.
As a result, the decisions of the Appeal Board’s approval, the Executive Council’s decision dismissing the appeal, and the Minister’s decision confirming the dismissal of the appeal, were reviewed and set aside.
